912 N.E.2d 881 (Ind.App. 2009), 15A01-0812-CR-566, Brown v. State

Docket Nº15A01-0812-CR-566.
Citation912 N.E.2d 881
Opinion JudgeFRIEDLANDER, Judge.
Party NameWayne BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyLeanna Weissmann, Lawrenceburg, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelNAJAM, J., and VAIDIK, J., concur.
Case DateSeptember 10, 2009
CourtCourt of Appeals of Indiana

Page 881

912 N.E.2d 881 (Ind.App. 2009)

Wayne BROWN, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 15A01-0812-CR-566.

Court of Appeals of Indiana.

September 10, 2009

Transfer Denied Oct. 29, 2009.

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Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Following a jury trial, Wayne Brown was convicted of three counts of Child Exploitation 1 as class C felonies and five counts of Possession of Child Pornography 2 as class D felonies. Brown was subsequently sentenced to a total aggregate term of fourteen years incarceration. On appeal, Brown presents four issues for our review:

1. Did the trial court abuse its discretion in permitting the State to amend the charging information?

2. Do Brown's convictions violate principles of double jeopardy?

3. Did the prosecutor engage in misconduct?

4. Did the trial court abuse its discretion in sentencing Brown?

We affirm.

On November 29, 2006, Task Force Agent Phillipe Dubord was working in an FBI office in Tampa, Florida, when he used an enhanced software version of the Lime Wire file-sharing program to search the internet in an effort to locate computer users in possession of and willing to share child pornography. 3 At approximately 11:00 a.m. on November 29, Dubord logged onto his computer and launched a Lime Wire search, entering search terms such as " qqaazz" , " one-y-o" (meaning one-year-old), and " four-y-o" (meaning four-year-old), each known to be associated with child pornography file names. Transcript at 411.

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During his search, Dubord discovered three computers whose users were sharing child pornography with other users. Dubord identified the first computer by its Internet Protocol (IP) address and eventually linked the IP address to the residence of Sandra Brown,4 located in Aurora, Indiana. Dubord determined that there were 718 pornographic images being disseminated from this IP address. Dubord remotely accessed this computer and downloaded ten of the files, each of which proved to contain child pornography. Dubord was familiar with some of the images he downloaded from his prior work on child pornography cases. Dubord forwarded the information and images he obtained to an FBI office located in New Albany, Indiana. The matter was eventually assigned to Indiana State Police Detective Tom Baxter. Based on the information received from Dubord, Detective Baxter obtained a search warrant for Sandra Brown's residence, which police executed on February 21, 2007.

During the February 21 search, police found a computer in the basement bedroom that was used by Brown.5 The computer was running, but its monitor was off. When Officer Jennifer Barnes, a detective with the cyber crimes unit, turned the monitor on, she noted that the Lime Wire program was active, but minimized. When she maximized the application, the Lime Wire program showed files that were awaiting sources for downloading, including, among others, the file " 10YOLSLUT-(15)" . State's Exhibit 61. A preliminary analysis of the hard drive of Brown's computer revealed additional child pornography files. The police seized the computer, as well as CDs and DVDs later determined to contain thousands of images of child pornography.

Further investigation of the hard drive of Brown's computer led to the discovery of thousands of files containing pornographic images of children. These image files were located in a shared folder that was used as a repository for files to be shared on Lime Wire. Descriptions of some of the images found on Brown's computer follow: (1) State's Exhibit 75A depicts intercourse with a prepubescent child; (2) State's Exhibit 75B depicts a child performing fellatio; (3) State's Exhibit 75C depicts a naked, prepubescent child with her legs spread; (4) State's Exhibit 75D depicts a prepubescent child fondling a man's penis with her left hand; and (5) State's Exhibit 75E depicts a naked Asian child in chains and a collar, restrained by a naked, masked adult male.

On July 27, 2007, the State charged Brown with twenty-nine counts of child exploitation and five counts of possession of child pornography. On January 9, 2008, the State sought to amend the charging information and the trial court granted the request. On September 12, 2008, after the omnibus date and three days prior to trial, the State sought to amend the charging information by adding thirty-nine charges.6 The State also sought to amend the information by linking specific images by filename to related counts. On September 15, 2008, the first day of the five-day trial, the trial court permitted the amendment. Ultimately, the court, upon Brown's request, ordered severance of the charges, and the

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jury trial proceeded only as to Counts 1 through 9. Counts 1 through 4 were for class C felony child exploitation, stemming from the dissemination of four separate images of child pornography on November 29, 2006. Counts 5 through 9 were for class D felony possession of child pornography, each of which were based on separate images discovered during the February 21 search of Brown's bedroom. Two days after the start of trial, the State again sought to amend Counts 7, 8, and 9 by changing the image filenames associated with those counts to correct apparent scrivener's errors and to add language regarding intent to Count 7. Over Brown's objection to including intent language in Count 7, the trial court allowed the amendment.

During trial, Brown maintained his innocence, asserting that many people had access to his basement bedroom and were permitted to use the computer where the pornographic images of children were found. Brown testified that one of his friends, specifically naming John Shepherd, among others, must have downloaded and shared the pornographic images. During an overnight break in the trial, the prosecutor telephoned Shepherd, who was identified as a defense witness, and told him, in violation of the separation of witnesses order, that Brown had accused Shepherd of downloading the pornographic images to Brown's computer. The prosecutor told Shepherd that he needed to come to court the following morning " to defend himself" . Transcript at 1096. The following day, the prosecutor revealed his conduct to the court and admitted that it constituted a violation of the separation of witness order. Brown immediately moved for a mistrial, which the trial court denied.

At the conclusion of the evidence, the jury found Brown not guilty of Count 1 and guilty of Counts 2 through 9. On Counts 2, 3, and 4, the court sentenced Brown to eight years for each conviction. On Counts 5 through 9, the trial court sentenced Brown to three years for each conviction. Although the trial court ordered the sentences served consecutively, the trial court found that the sentences should be capped pursuant to the limitation found in Ind.Code Ann. § 35-50-1-2(c) (West, PREMISE through Public Laws approved and effective through 4/20/2009) for convictions arising out of a single episode of criminal conduct. Specifically, the court determined that the child exploitation offenses constituted a single episode of criminal conduct, and thus the sentences for those convictions could not exceed ten years. The trial court also determined that the possession of child pornography offenses constituted a single episode of criminal conduct, and thus the sentences for those convictions could not exceed four years. The trial court therefore imposed a total aggregate sentence of fourteen years.

1.

Brown argues that the trial court abused its discretion when it permitted the State to amend the charging information on September 15, 2008,7 just prior to the start of trial, and again on September 17, 2008. In support of his argument, Brown asserts that the amendments were substantive, and thus, under the statute in effect at the time he committed the offenses, had to be made thirty days before the omnibus date.

Amendments to a charging information are governed by Ind.Code Ann. § 35-34-1-5 (West, PREMISE through

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Public Laws approved and effective through 4/20/2009). Before addressing the merits of Brown's argument, we first address Brown's claim that the version of this statute in effect at the time he committed the instant offenses controls the outcome of our decision.8 At the time Brown committed the offenses at issue I.C. § 35-34-1-5(a) permitted an amendment to the charging information at any time " because of any immaterial defect," and listed nine examples. Similarly, subsection (c) of the statute then in effect permitted " at any time before, during or after the trial, ... an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant." I.C. § 35-34-1-5(c). Subsection (b), however, expressly limited the time for certain other amendments as follows:

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant, at any time up to:

(1) thirty (30) days if the defendant is charged with a felony; or

(2) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;

before the omnibus date.

I.C. § 35-34-1-5(b). In January 2007, our Supreme Court handed down its opinion in Fajardo, in which it held that when an individual is charged with a felony, amendments to matters of substance are permissible only if made more than thirty days before the omnibus date, regardless of whether the defendant's...

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